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Review (Appeal-JR) - Fresh Law - Administrative (2). Turner v. Canada (Attorney General)
In Turner v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR, that brought against an appeal dismissal "by the Royal Canadian Mounted Police Conduct Appeal Adjudicator", that in turn regarding a finding by a conduct board where the appellant "was found to have engaged in discreditable conduct contrary to the Code of Conduct of the Royal Canadian Mounted Police (Schedule to the Royal Canadian Mounted Police Regulations, 2014, S.O.R./2014-281) and ordered to resign within 14 days or be dismissed".
Here the court dismisses the appellant's administrative delay argument on what are 'fresh law' (my term) grounds, not because the appellant didn't continue to protest the delay essentially throughout the multiple levels of the proceeding but because "they do not ask for a stay or any other relief based on delay" throughout - IMHO essentially straining fresh law doctrine to new frontiers of injustice. Delay was obviously a primary ground of the appellant's position from when it first arose at the conduct board to the Federal Court of Appeal level:[7] There is one other issue I must address. The appellant asserts that the Federal Court erred in not granting him a remedy for the delay in his proceedings, including the approximately 45 months that elapsed between the appellant initiating his appeal of the conduct board decision and the Adjudicator’s rendering a decision on that appeal. That delay appears to be largely attributable to the External Review Committee, which issued its report to the Adjudicator on July 7, 2022, despite referral to the Committee in February 2020. However, that delay was not the only one.
[8] The events giving rise to the conduct hearing occurred in fall 2014. The conduct board hearing on the merits of the then alleged breaches of the Code of Conduct did not occur until November 2017. In November 2016, the appellant brought a motion seeking a stay of the conduct board proceeding based on delay. Although the appellant was not granted a stay, the conduct board as then constituted found the delay to be an abuse of process which, in its view, might be appropriate to consider later in the conduct hearing process.
[9] At the end of the conduct board hearing, on November 30, 2017, the conduct board as then constituted delivered its decision orally, but its written reasons were not finalized until December 6, 2018, and not served on the appellant until December 27, 2018. The conduct board considered the abuse of process as a potential mitigating factor but declined to grant a remedy—an alleged error that the Adjudicator addressed on appeal.
[10] Before the Federal Court, the appellant sought a remedy for the alleged abuse of process arising from the delays, including the delay in the External Review Committee process. The Federal Court refused to grant a remedy. It found the first delay was reasonably addressed by the Adjudicator. I agree with that conclusion.
[11] As to the further delay that transpired after the appellant appealed the conduct board decision, the Federal Court said the appellant should have raised it with the Adjudicator. Having failed to do so, he could not raise it before the Federal Court: Federal Court reasons at paras. 61‑64.
[12] I see no error in that conclusion. I am satisfied that the appellant could have raised the further delay as an abuse of process with the Adjudicator. I accept that the Commissioner's Standing Orders (Conduct), S.O.R./2014-291, expressly provide that a party may bring a motion before the conduct board. In contrast, the Commissioner's Standing Orders (Grievances and Appeals), S.O.R./2014-289, do not. That said, nothing precluded the appellant from raising the issue with the Adjudicator by motion or in correspondence.
[13] In the context of an appeal, the Adjudicator has broad powers. These include the powers to decide all matters related to the appeal, to give any direction that is appropriate if a matter arises that is not otherwise provided for and, in deciding an appeal or any matter arising in the context of an appeal, to accept any evidence a party submits: Commissioner’s Standing Orders (Grievances and Appeals), ss. 29, 30(2), 32. In fact, during the appeal process, both the appellant and the respondent brought motions seeking relief from an adjudicator. But the appellant did not bring a motion for a stay or seek any other relief from the Adjudicator based on the further delay.
[14] In saying this, I acknowledge that the appellant sent emails to the External Review Committee, and those emails were in the record before the Adjudicator. However, they ask the Committee for status updates, an explanation for its delay in issuing its report, and ultimately, in early May 2022, for the Committee to issue its report. Notably, they do not ask for a stay or any other relief based on delay.
[15] Failure to raise a known procedural flaw, defect or irregularity in an administrative process with the administrative decision-maker constitutes a waiver of the flaw, defect or irregularity, such that it cannot be raised in a judicial review of the administrative decision: Teksavvy Solutions Inc. v. Bell Canada, 2024 FCA 121 at para. 58 and cases there cited. Therefore, the Federal Court made no reviewable error in denying the appellant relief based on the further delay.
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